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Freedom of Expression / Assembly / Thought / Religion

A newspaper had published stories that called attention to police and Army brutality. The government ordered the newspaper shut down, and the Supreme Court of Sri Lanka upheld the closure. In so doing, the Court rejected international freedom of expression norms. ''The Court will respect the [Universal] Declaration [of Human Rights] and the Covenants but their legal relevance here is only in the field of interpretation.'' See also Chelliah v. Parange, 2 Sri Lanka Law Reports 132 (1982) (constitutional guarantee of right to personal liberty ''is based upon Article 9 of the Universal Declaration of Human Rights''); Perera v. Attorney-General, S.C. Nos. 107-109/86, slip op. (1986) (unreported) (Sri Lanka) (referring to the UDHR's permissible limitations on rights in interpreting the constitutionally guaranteed freedom of speech); Velmurugu v. Attorney-General, 1 Sri Lanka Law Reports 406 (1981), Thadchanamoorthi v. Attorney-General, F.R.D. (1) 129 (Sri Lanka) (discussing the interpretation by the European Commission and Court of Human Rights regarding the scope of governmental libaility for ill-treatment and torture).

(found in ''The Status of the Universal Declaration of Human Rights in National and International Law'' by Hurst Hannum, Georgia Journal of International and Comparative Law, Vol. 25, Nos. 1&2, Fall 1995/Winter 1996, p 300)

The petitioner had participated in a radio program on a government-controlled radio station. The petitioner, on air, had asked controversial questions. The petitioner claimed that, following these questions, the program was altered so that no controversial material would be broadcast, an arbitrary violation of his right to freedom of speech under the Sri Lankan constitution. The Supreme Court of Sri Lankan sided with the petitioner and called the government’s actions “sudden and arbitrary”. The Court cited the European Court of Human Rights but called certain of its decisions “not helpful” because its free expression provisions differed from their correlates in the Sri Lankan Constitution. Nevertheless, the Court ruled against the government interference.

The appellant went to a police officer’s home on a weekday morning while the police officer was sleeping after coming off of a night shift. The appellant knocked on the police officer’s door and the police officer answered. The appellant then stood in the street playing a guitar and protesting the police officer’s role in an earlier search warrant incident. After he refused to cease, he was arrested after the arrival of other officers. The appellant challenged this, and thus the issue was whether the appellant’s fundamental right to freedom of expression afforded him greater legal weight in court than the police officer’s right to privacy.

In determining whether privacy is a “right” or a “value”, the Supreme Court of New Zealand noted that New Zealand was committed to the ICCPR. The ICCPR allows for restrictions on the freedom of expression if they are reasonable, and if the Court were to follow the ICCPR here, the appellant’s appeal could have been denied. However, the Court ruled in favor of the appellant by favoring the NZ Bill of Rights, which does not allow for such restrictions on the right to freedom of expression. Thus, the Court went above and beyond the ICCPR in providing for freedom of expression, though by doing so the right to privacy was somewhat infringed. The Court also cited the UDHR, the ECHR, the CRC, the Charter of Fundamental Rights of the European Union, the American Convention on Human Rights, the Cairo Declaration on Human Rights in Islam. The Court also affirmed that there is a right to privacy in New Zealand.

(In Malaysia, the uppermost court is the Federal Court, followed by the Court of Appeal, then the High Court.)

Suhakam, Malaysia's national human rights commission, had issued a press statement expressing concern over the government's arrest of seven activists on April 11, 2001. The activists had been critical of the government's prosecution of former Deputy Prime Minister Anwar Ibrahim, who had fallen out of favor with then-Prime Minister Mahathir Muhammad. The government had used the Internal Security Act (ISA) to detain the protestors. Suhakam accounced that it would recommend that the government repeal the ISA or amend it.

In its opinion, the High Court criticized Suhakam's statement as ''an unlawful interference with the lawful exercise of discretion of the detaining authority.'' The High Court said that any given court was ''confined in its duty of ascertaining what the law is and a corresponding application of it . . . [A court] cannot afford, nor should it afford itself, the luxury of going beyond that. Confusing the law as it is with what it can or should or ought to be in the area of the law as in this case will only give false hopes to the detainees and their understandably distraught loved ones.''

In so holding, the High Court took a narrow view of the role of courts in reviewing executive actions. Thus, international standards, under this view, could be interpreted narrowly as well, including human rights standards. The High Court also noted that the Universal Declaration of Human Rights allowed for human rights limitations in the interest of public order. Thus, under this view, Suhakam could not complain about ISA restrictions of human rights.

In so doing, the High Court tried to localize international human rights law and bring into the government's view of how human rights law should be implemented. Here, the High Court had interpreted the Universal Declaration of Human Rights through the Human Rights Commission of Malaysia Act. It had then interpreted the HRCMA through the Constitution, which eschewed greater restrictions on human rights than the Universal Declaration of Human Rights. The High Court's opinion indicated that courts were to fit international human rights law into domestic law standards, essentially reducing the applicability of international human rights law.

The detainees had applied for habeas corpus. The High Court rejected the application.

The case was appealed to the highest court of Malaysia, the Federal Court. The Federal Court, in a ''schizophrenic'' decision, held that the detention by the government was mala fide (the only basis on which a court may review an ISA detention order) because it was used for ''intelligence gathering'' and ''unconnected with national security.'' However, the Federal Court did not order the prisoners released, as their detention was made under a subsequent ministerial order not the subject of the prisoners' habeas corpus application. Also, the Federal Court held that the HRCMA provided only ''an invitation to look at the 1948 Declaration if one was disposed to do so.'' Thus, the Federal Court had maneuvered itself and manipulated the HRCMA's wording to preserve Malaysia's own domestic law, at the expense of international human rights law. This case illustrates how Malaysian courts see Suhakam as a possible harbinger of unwelcome international norms.

The Supreme Court of Japan, showcasing its tendency of extreme deference to the executive, overturned a lower court decision regarding criminal law. The lower court decision had held that, given the plaintiff's background in a political organization, it could not be said that the government manifestly lacked a reason to arrest him subsequent to his refusing five times to be interrogated voluntarily. The plaintiff had cited the ICCPR in its arguments, but the Court did not respond to this in its very short opinion. The Court did not even give a reason for failing to deal with the plaintiff's claims. Although this practice of failing to deal with a claim when rejecting it is not unusual in Japanese jurisprudence, the Supreme Court seemed to be sending a signal to lower courts, who had before then shown a tendency to broaden the scope of individuals' rights in Japan through recognition of rights provided in the ICCPR. The signal was that the Supreme Court would not necessarily be quick to broaden such rights, even if the judiciary as a whole seemed to be, and that international law (here, the ICCPR) would not necessarily concern the Court if it wanted to rule a particular way.

The Public Offices Election Law prohibited door-to-door canvassing for political candidates. Lower courts had allowed this law to continue, though acknowledging that it infringed on the constitutionally-protected right to freedom of speech. The courts had stated that the Constitution allowed for a certain amount of infringement, and that the right to freedom of speech was not inviolable. The Supreme Court of Japan agreed and allowed the law. In so doing, the Court cited the ICCPR and said that the law did not violate Articles 19 and 25 of the ICCPR.

A case was decided on June 2, 2010, by the Cambodian Supreme Court regarding the legality of the applicant’s criminal conviction by lower courts. The Court upheld the conviction of the defendant by the lower court. The defendant was convicted of defamation of Prime Minister Hun Sen. There is not yet a readily available interpretation or documentation of the case in English. If such material arises (as it probably will sometime, as it is a much-discussed case in Cambodia), it will be good to watch if the Court cites international human rights norms, such as UDHR, vis-à-vis the burden of proof, etc.

The Court of Final Appeal of Hong Kong allowed for greater flexibility in when public protests could be held by limiting the power of the police to reject applications for such protests. In so holding, the Court relied on the ICCPR.

The defendants had participated, in Hong Kong, in a pro-democracy in China demonstration. They carried a defaced PRC flag, as well as a defaced Hong Kong SAR flag. The demonstrators were subsequently charged with violating section 7 of the National Flag and National Emblem Ordinance and section 7 of the Regional Flag and Regional Emblem Ordinance. Found guilty, the defendants appealed to the Court of Appeal and won. The government then appealed to the Court of Final Appeals, the highest court in Hong Kong. The Court of Final Appeal ruled in favor of the government. In so doing, the Court applied and interpreted the human rights norms in the ICCPR governing freedom of expression. Protection of national (PRC) and regional (HKSAR) flags was found to be provided for by the ICCPR under its “public order” provisions, found in Article 19. Thus, the two ordinances by which the defendants had been convicted were constitutional. The CFA held that national and regional flags are important symbols of the PRC and the HKSAR, respectively, and as such societal and community interests were involved that had to be taken into consideration. Although the Court considered such limits on flag desecration as limits on the constitutionally-protected right of free speech, these limits were narrow, and the defendants could have expressed themselves in other ways. Thus, the “necessity” and “proportionality” tests of international human rights norms had been satisfied.

Although the CFA upheld the flag desecration laws, they did so in consideration of international human rights norms, here, the ICCPR, which had been incorporated into the Bill of Rights. Thus, any violation of the ICCPR, an international human rights norm, violated the Bill of Rights, which was domestic law in Hong Kong. In so doing, the CFA showed that the courts in Hong Kong were bound by such international norms. Thus, the courts had the power to review legislation and determine whether it was constitutional on the basis of certain human rights standards. This holds true for executive actions as well.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 9-12)